The road to Utopia is the road to Hell. — Communism and socialism are the opiates of the intelligentsia. — The left, in its eternal and futile quest for "equality", is more than willing to abolish liberty and sunder fraternity.

Menu

Negative Rights, Social Norms, and the Constitution

In a recent post about negative rights, I quote Randy Barnett, who explains that such “rights that define the space within which people are free to choose how to act.” Well, not quite.

Think about it. A libertarian regime would protect these negative rights:

freedom from force and fraud (including the right of self-defense against force)

property ownership (including the right of first possession)

freedom of contract (including contracting to employ/be employed)

freedom of association and movement.

But those rights enclose a cavernous “space,” within which human behavior can find many self-destructive outlets unless it is shaped by social norms — socially evolved rules (as opposed to government-dictated ones) which delineate morally and socially acceptable behavior. Think of the ways in which your present behavior is shaped by the moral lessons of your childhood and by your experiences as a child, student, spouse, parent, friend, co-worker, neighbor, church member, club member, team member, and the like.

In sum, negative rights are meaningless absent a framework of social norms that is consistent with negative rights and which directs behavior along constructive paths. Conversely, constructive social norms are undermined where government fails to protect negative rights or actively denies them. There is, for example, no right of freedom from force in a community where violence is the norm and government is unable to protect residents from violence; there is no right of property ownership in a community where government seizes property as it sees fit to do so; there is no right of freedom of movement for slaves; and so on. (Obviously, I am referring to rights as they are actually enjoyed, not “natural” rights.)

In the United States, the history of negative rights parallels the history of the Constitution:

The original Constitution protected the rights to life, liberty, and property against infringement by the federal government in two ways. First and foremost, Congress was not given a general legislative power but only those legislative powers “herein granted,” referring to those powers enumerated in Article I, section 8. It is striking how these powers avoid expressly restricting the rightful exercise of liberty. The power “to raise and support armies” does not include an express power of conscription, which would interfere with the property one has in one’s own person. The power to establish the post office does not expressly claim a power to make the government post office a monopoly, which would interfere with the freedom of contract of those who wish to contract with a private mail company of the sort founded by Lysander Spooner. (By contrast, the Articles of Confederation did accord the power in Congress to establish a postal monopoly.)…

Two years after its enactment, the Constitution was amended by the Bill of Rights. These ten amendments included several express guarantees of such liberties as the freedom of speech, press, assembly, and the right to keep and bear arms. The Bill of Rights barred takings for public use without just compensation. It provided additional procedural assurances that the laws would be applied accurately and fairly to particular individuals.
All of the rights enumerated in the Bill of Rights are consistent with modern libertarian political philosophy. And to this list of rights was added the Ninth Amendment that said, “The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people.” In this way, even liberty rights that were not listed were given express constitutional protection. Finally, the Tenth Amendment reaffirmed that Congress could exercise only those
powers to which it was delegated “by this Constitution.”…

While the Thirteenth Amendment’s ban on involuntary servitude expanded the Constitution’s protection of individual liberty against abuses by states, it was the Fourteenth Amendment that radically altered the federalism of the original
Constitution. For the first time, Congress and the courts could invalidate any state laws that “abridge[d] the privileges or immunities of citizens of the United States.” The original meaning of “privileges or immunities” included the same natural rights retained by the people to which the Ninth Amendment referred, but also the additional enumerated rights contained in the Bill of Rights. The Due Process Clause of the Fourteenth Amendment placed a federal check on how state laws are applied to particular persons, while the Equal Protection Clause imposed a duty on state executive branches to extend the protection of the law on all persons without
discrimination. (Randy Barnett, “Is the Constitution Libertarian?,” p. 14-17)

However,

the Supreme Court has upheld countless federal laws restricting
liberty, primarily under the power of Congress “to regulate commerce . . . among the several states” combined with an open-ended reading of the Necessary and Proper Clause. Further it has upheld the power of Congress to spend tax revenue for purposes other than “for carrying into execution” its enumerated powers, thereby exceeding the scope of the Necessary and Proper Clause….

Beginning in the 1930s, the Supreme Court . . . adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. In the 1950s it made this presumption effectively irrebuttable. Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. (op. cit., pp. 15, 17-18)

What the law giveth, the law taketh away. The power of the States, individually, to trample negative rights has been supplanted by the far greater power of the central government to trample negative rights.

Generally, negative rights are trampled by every government enactment that does more than protect negative rights. Which is to say that most government enactments deny negative rights; for example, they

compel the surrender of income to government agencies for non-protective purposes (violating freedom from force and property ownership)

compel the transfer of income to persons who did not earn the income (violating freedom from force and property ownership)

direct how business property may be used, through restrictions on the specifications to which goods must be manufactured (violating property ownership)

force the owners of businesses (in non-right-to-work-States) to recognize and bargain with labor unions (violating property rights and freedom of contract)

mandate attendance at tax-funded schools and the subjects taught in those schools, even where those teachings run counter to the moral values that parents are trying to inculcate (violating freedom from force and freedom of association)

limit political speech through restrictions on political contributions and the publication of political advertisements (violating freedom from force and freedom of association).

Such enactments also trample social norms. First, and fundamentally, they convey the message that government, not private social institutions, is the proper locus of moral instruction and interpersonal mediation. Persons who seek special treatment (privileges, a.k.a. positive rights) learn that they can resort to government for “solutions” to their “problems,” which encourages other persons to do the same thing, and so on. In the end — which we have not quite reached — social institutions lose their power to instruct and mediate, and become merely sources of solace and entertainment.

More specifically, government enactments have

engendered disrespect for life by authorizing abortion

legitimated lewd, lascivious, inconsiderate, and violent behavior in the name of “freedom of expression” and “freedom of speech,” even while distancing children from the moral lessons of religion by declaring freedom from religion where the Constitution only prohibits government establishment of religion

undermined the role of the family as a central civilizing force by encouraging the breakup of families (welfare rules, easy divorce)

usurped the authority of parents by usurping their authority to instill moral values (as mentioned above)

encouraged the absence of mothers from the home through subsidized day-care and “affirmative action”

shifted the burden of care for the elderly from families to “society” (i.e., taxpayers) through Social Security, Medicare, and Medicaid, thus teaching the wrong lessons about the value of life and respect for old persons.

I could go on and on, but I hope that I have made my point: Politicians — in their zeal to pander to special interests — have damaged the general interest through their disregard of negative rights and the framework of civilizing norms that transforms negative rights into constructive behavior.

How could this have happened? Here is my explanation:

The Framers underestimated the will to power that animates office-holders. The Constitution‘s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

. . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. . . .

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] . . . by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. . . .

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself and the States’ ratifying conventions on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake.

Comments & Correspondence

Comments close 30 days after the publication of a post. If a post is no longer open for comment, or if you prefer to communicate privately, you may e-mail me at the Germanic nickname for Friedrich followed by the last name of the great Austrian economist and Nobel laureate whose first name is Friedrich followed by the 3rd and 4th digits of his birth year followed by the usual typographic symbol followed by the domain and extension for Google’s e-mail service — all run together.

If you submit a comment or suggestion by e-mail, I may acknowledge it or use it on this blog. But I may paraphrase what you say or edit it for the sake of concision, clarity, coherence, or brevity. I will not use your name unless you specifically authorize me to do so. Even then, I will put quotation marks around your name unless I am certain of your identity.

On Liberty and Libertarianism

What is liberty? It is peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.

John Stuart Mill opined that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." But who determines whether an act is harmful or harmless? Acts deemed harmless by an individual are not harmless if they subvert the societal bonds of trust and self-restraint upon which liberty itself depends.

Which is not to say that all social regimes are regimes of liberty. Liberty requires voice -- the freedom to dissent -- and exit -- the freedom to choose one's neighbors and associates. Voice and exit depend, in turn, on the rule of law under a minimal state.

Liberty, because it is a social phenomenon and not an innate condition of humanity, must be won and preserved by an unflinching defense of a polity that fosters liberty through its norms, and the swift and certain administration of justice within that polity. The governments in and of the United States have long since ceased to foster liberty, but most Americans are captives in their own land and have no choice but to strive for the restoration of liberty, or something closer to it.

Who can restore liberty? Certainly not the self-proclaimed libertarians who are fixated on Mill's empty harm principle and align with the left on social norms. Traditional (i.e., Burkean) conservatism fosters the preservation and adherence of beneficial norms (e.g., the last six of the Ten Commandments). Thus, by necessity, the only true libertarianism is found in traditional conservatism. I am a traditional conservative, which makes me a libertarian -- a true one.

Notes about Usage

“State” (with a capital “S”) refers to one of the United States, and “States” refers to two or more of them. “State” and “States,” thus used, are proper nouns because they refer to a unique entity or entities: one or more of the United States, the union of which, under the terms and conditions stated in the Constitution, is the raison d’être for the nation. I reserve the uncapitalized word “state” for a government, or hierarchy of them, which exerts a monopoly of force within its boundaries.

Marriage, in the Western tradition, predates the state and legitimates the union of one man and one woman. As such, it is an institution that is vital to civil society and therefore to the enjoyment of liberty. The recognition of a more-or-less permanent homosexual pairing as a kind of marriage is both ill-advised and illegitimate. Such an arrangement is therefore a “marriage” (in quotation marks) or, more accurately, a homosexual cohabitation contract (HCC).

The words “liberal”, “progressive”, and their variants are usually enclosed in quotation marks (sneer quotes) because they refer to persons and movements whose statist policies are, in fact, destructive of liberty and progress. I sometimes italicize the words, just to reduce visual clutter.

I have reverted to the British style of punctuating in-line quotations, which I followed 40 years ago when I published a weekly newspaper. The British style is to enclose within quotation marks only (a) the punctuation that appears in quoted text or (b) the title of a work (e.g., a blog post) that is usually placed within quotation marks.

I have reverted because of the confusion and unsightliness caused by the American style. It calls for the placement of periods and commas within quotation marks, even if the periods and commas don’t occur in the quoted material or title. Also, if there is a question mark at the end of quoted material, it replaces the comma or period that might otherwise be placed there.

If I had continued to follow American style, I would have ended a sentence in a recent post with this:

What a hodge-podge. There’s no comma between the first two entries, and the sentence ends with an inappropriate question mark. With two titles ending in question marks, there was no way for me to avoid a series in which a comma is lacking. I could have avoided the sentence-ending question mark by recasting the list, but the items are listed chronologically, which is how they should be read.

This not only eliminates the hodge-podge, but is also more logical and accurate. All items are separated by commas, commas aren’t displaced by question marks, and the declarative sentence ends with a period instead of a question mark.